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TMI Blog2022 (7) TMI 1501X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the ld. CIT(A)-1, Raipur, dated 28.03.2019 for the assessment year 2010-2011. 2. Though the revenue has filed adjournment application, however, looking to the facts of the case, we reject the application of the revenue and proceed to dispose off the appeal of assessee after considering the arguments of the ld. AR and the relevant documents available on record. 3. In this appeal, the assessee has raised the following two effective grounds :- 1. Ld. CIT(A) erred in confirming addition of Rs.4,65,000/- out of the addition of Rs.4,65,000/- out of the addition of Rs.13,37,100/- made by AO u/s.68 on account of cash deposits n bank account of appellant. The addition made by AO and confirmed by Ld. CIT(SA) is arbitrary, baseless contrary to evidences on record and is not justified. 2. Ld. CIT(A) erred in not adjudicating ground no.2 raised by the appellant regarding non applicability of provisions of sec. 68. In the facts of the case, addition made by the AO and confirmed by CIT(A) is illegal and not justified. 4. Brief facts of the case are that originally the assessee had not filed his return of income, however, when the case of the assessee was reopened on i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted many times and assessee needs expensive treatment which costs around Rs. 3 to 4 lakhs per year. iii) During AY 2010/11, assessee did not have enough source of income and therefore the mother supported him. 9. Source of gift i) Assessee s mother owns agricultural land. Evidence at PN 18 of PB. Gift given partly out of agricultural income. In her capital account, agricultural income of Rs. 1,91,500/- is shown (PN 17 of PB). ii) Gift of Rs. 3,15,000/- given for repairs/renovation of house on the occasion of marriage of assessee s brother Pankaj Mahant on 07.03.2009. The amount gifted out of her own capital and borrowings made from different relatives, as mentioned in the affidavit. 10. Conditions of sec. 68 satisfied. Burden discharged by the assessee. Evidences remained un-rebutted. No addition could be made/sustained. 11. Address, PAN mobile number of donor given to the AO. AO also requested for making direct enquiry or to call the donor personally. Neither AO nor Id. CIT(A) made enquiry nor did they call the donor. Ld. CIT(A) did not require the assessee to produce the donor at any time. Wrong observation in the appellate order. Rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of an assessee cannot be construed as a credit in the books of the assessee, for the very reason that the bank account cannot be held to be the books of the assessee. Though, it remains as a matter of fact that the bank account of an assessee is the account of the assessee with the bank, or in other words the account of the assessee in the books of the bank, but the same in no way can be held to be the books of the assessee. We have given a thoughtful consideration to the scope and gamut of the aforesaid statutory provision of Section 68, and are of the considered view that an addition made in respect of a cash deposit in the bank account of an assessee, in the absence of the same found credited in the books of the assessee maintained for the previous year, cannot be brought to tax by invoking the provisions of Section 68 of the Act. In this respect, we draw strength from the decision of the Hon ble Bombay High Court in the case of CIT Vs Bhaichand N Gandhi (1983) 141 ITR 67 (Bombay) wherein the High Court has held as under:- As the Tribunal has pointed out, it is fairly well settled that when moneys are deposited in a bank, the relationship that is constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o fail because as per the judgment of the Hon'ble Bombay High Court in the case of Shri Bhaichand N. Gandhi (supra), the bank Pass Book or bank statement cannot be construed to be a book maintained by the assessee for any previous year as understood for the purposes of section 68 of the Act. Therefore, on this account itself the impugned addition deserves to be deleted. I hold so. We further find that a similar view had also been arrived at in a 'third member' decision of the Tribunal in the case of Smt. Madhu Raitani Vs. ACIT (2011) 10 taxmann.com 206 (Gauhati) (TM), as well as by the coordinate Benches of the Tribunal in the case of Mehul V. Vyas Vs. ITO (2017) 16 4 ITD 296 (Mum) and ITO, Barabanki Vs. Kamal Kumar Mishra (2013) 33 taxamann.com 610 (Lucknow). 10. We find that as stands gathered from the records, the addition aggregating to Rs. 4.03 lacs sustained by the ld. CIT(A) is in respect of the cash deposits in the bank accounts of the assessee, and not in any 'books' of the assessee for the year under consideration. We thus are of the considered view that in the backdrop of the aforesaid settled position of law, the addition made by the A.O in res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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